ROF III LEGAL TITLE TRUST 2015 v. BENT (2021)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Annette Bent (Bent or defendant) appeals from an order dated April 30, 2019, of a single justice of this court denying her motion seeking a stay of eviction. Her notice of appeal states that the single justice abused her discretion by (1) disregarding Adjartey v. Central Div. of the Hous. Court Dep't, 481 Mass. 830 (2019), and Hilton v. Central Div. of the Hous. Court Dep't, 481 Mass. 1047 (2019), and (2) overlooking the lower court's disregard of binding precedent. As clarified in her briefing, Bent states that the entire purpose of this appeal is to address the necessity of the enforcement of the stare decisis of the Adjartey decision.

We begin with that portion of the procedural background pertinent to this appeal. After cross motions for summary judgment, judgment entered in the plaintiff's favor in the underlying summary process eviction action. Bent's motion for reconsideration was denied. Although Bent filed a notice of appeal, she never perfected an appeal from the judgment. The plaintiff then filed a motion to set appeal bond and for use and occupancy payments, to which Bent objected and moved to waive bond. Bent's motion was denied, and she was ordered to post bond of $10,000 and to pay use and occupancy in the amount of $866. Bent appealed this bond order to a single justice of this court, who affirmed. The single justice also denied Bent's motion to reconsider. Bent's attempt to appeal these orders to a single justice were denied, together with an explanation of how to appeal to a full panel, which she did not pursue. Bent never posted the appeal bond.

On April 30, 2019, Bent filed a motion to stay eviction with the single justice, under Mass. R. A. P. 6 (a), as appearing in 481 Mass. 1608 (2019). This motion was accompanied by an affidavit of indigency. The single justice waived the entry fee,³ but denied the motion to stay. It is this order that is now before us on appeal.

“Decisions of a single justice will not be disturbed on appeal absent clear error of law or abuse of discretion.” Adjartey, 481 Mass. at 833, quoting Fogarty v. Commonwealth, 406 Mass. 103, 106 (1989). “[A] judge's discretionary decision constitutes an abuse of discretion where we conclude the judge made a clear error of judgment in weighing the factors relevant to the decision, such that the decision falls outside the range of reasonable alternatives” (quotation and citation omitted). L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014). “Rarely ․ can it be said that a single justice is in error in denying relief.” Mezoff v. Cudnohufsky, 5 Mass. App. Ct. 874, 874 (1977). “An appellant seeking a stay pending appeal must ordinarily meet four tests: (1) the likelihood of appellant's success on the merits; (2) the likelihood of irreparable harm to appellant if the court denies the stay; (3) the absence of substantial harm to other parties if the stay issues; and (4) the absence of harm to the public interest from granting the stay” (citation omitted). C.E. v. J.E., 472 Mass. 1016, 1017 (2015).

Here, the single justice did not abuse her discretion in denying the stay. Bent had not perfected an appeal from the underlying judgment, nor had she posted the bond necessary to appeal.⁴ In such circumstances, Bent could not show that she had a likelihood of success on the merits of her challenge to the judgment. See Adjartey, 481 Mass. at 833 (where “petitioners had adequate alternative avenues to seek review of their claims, we conclude that the single justice did not abuse his discretion or commit clear error of law in denying the petitioners’ G. L. c. 211, § 3, petition”). The single justice accordingly did not abuse her discretion in denying the motion to stay.

Order of the single justice affirmed.

FOOTNOTES

3.   The single justice waived the entry fee while passing on the question of indigency.

4.   Moreover, the order imposing the bond had been carefully reviewed by another single justice, who had affirmed the order. Despite guidance as to how to pursue an appeal to a panel of this court from that single justice's order, Bent did not appeal.